DOVER – Regulations promulgated by the Secretary of State and slated to take effect Jan. 1 will require that new business entities formed in Delaware be screened against lists of persons and groups that have been prohibited from doing business in the United States.

These new “Know Your Customer” rules were crafted to help ensure that bad actors and those who may seek to access Delaware’s business entity registry for nefarious purposes will be prevented from doing so. The rules also require regular crosschecks to ensure that existing Delaware entities associated with newly prohibited parties are flagged and ultimately dissolved.

“Delaware’s reputation as the corporate capital of the world should not be undermined by those who would use our state as a place to create their unscrupulous business entities,” said Secretary of State Jeffrey Bullock. “Combined with the diligent efforts of our business services community, these new regulations will help cut off their access to a legal home in Delaware.”

According to the new regulations, a Delaware registered agent will be required to vet the identity of any potential customer seeking to form a Delaware entity such as a Limited Liability Company (LLC) or a corporation. Next, the agent is required to check that identity information against lists of persons, foreign nationals, groups and entities that have been sanctioned by federal authorities or are otherwise prohibited from conducting business in the United States. These lists are maintained by the Office of Foreign Assets Control (OFAC), a division of the U.S. Treasury.

In addition, the new regulations mandate that Delaware registered agents check their lists of existing clients, associated contacts and entities against the OFAC lists on a quarterly basis, at minimum. Checks also must be performed whenever client information is transferred from another agent, and whenever an agent receives new contact information from a client.

“Earlier this year, we issued guidelines to our registered agent community outlining our expectations for client vetting and verification, which included OFAC checks and quarterly monitoring. To solidify and strengthen those policies, we brought legislation to the General Assembly and ultimately promulgated the regulations that will take effect in the coming weeks,” said Deputy Secretary of State Kristopher Knight, director of the Division of Corporations. “Throughout the process, Delaware registered agents have been great partners in our shared goal, and I thank them for their support and cooperation.”

For entities not represented by a Delaware registered agent, such as entities formed and maintained by Delaware residents and legal professionals, the Division of Corporations will perform the “Know Your Customer” checks.

To ensure compliance with the new regulations, the Division of Corporations will conduct periodic registered agent audits, as it does for rules already on the books.

Statutory authority to strengthen these regulations as well as associated penalties for noncompliance was granted this year with the passage and signing of House Bill 404, which the Department of State drafted and advanced through the General Assembly. Under the new law, the Division of Corporations also has greater latitude to refuse to process filings from a registered agent that fails to obey regulations.

The Delaware Division of Corporations reminds its customers that the State will be implementing a major computer system conversion over an extended Labor Day weekend. The Division will close at 4:30 p.m. on Thursday, September 3, 2015, and will reopen for business at 8 a.m. on Tuesday, September 8.

The conversion to this new system will require time to complete all necessary tasks including the migration of data and images documenting 116 years of Delaware corporate law filings as well as Uniform Commercial Code filings. As a result, the Division will not be open on Friday, September 4, 2015. The holiday weekend was chosen as state offices will already be closed on Monday, September 7, 2015, in observance of Labor Day.

The completely revamped Delaware Corporation Information System (DCIS) is replacing the existing DCIS system which has been used since 1989. This upgrade will enable the State and its network of authorized online registered agents to offer expanded and improved products and services to customers.

More than 1.1 million active business entities worldwide are incorporated in Delaware including 66 percent of Fortune 500 firms. The new DCIS is a customized system providing a long-term platform for expanded flexibility and functionality for the Division’s customers and employees, and will allow global customers to access information regarding corporations more quickly and efficiently.

All priority submissions (1 hour, 2 hour, same day, and 24 hour) must be received by the Division by noon EDT on Thursday, September 3. The Division anticipates processing all priority submissions (other than 24 hour) on Thursday, September 3, 2015. Additional detail on the conversion including information on the availability of limited emergency services during the closure is available at http://corp.delaware.gov/systemconversioninfo.shtml.

Site features content in 10 languages

CorpLaw.Delaware.Gov

Wilmington – Governor Jack Markell joined Secretary of State Jeffrey Bullock, Court of Chancery Chancellor Leo E. Strine, Jr., and international attorneys to unveil a new website CorpLaw.Delaware.Gov that highlights the benefits of incorporating in Delaware. The new site features content in 10 languages, a blog with updated information, and an email subscription service for those interested in updates.

“In a globalized economy, businesses have many choices about where they locate and where they incorporate,” said Governor Jack Markell.   “This website is an important tool that will help the state of Delaware communicate and market to an ever-expanding international audience about the benefits of incorporating in Delaware.  The site will help us reach a broad international audience whose members may be weighing their options for business formation.  We want them to choose Delaware.”

The new site, corplaw.delaware.gov, features basic information on the advantages of Delaware corporate law in 10 languages (English, Arabic, Chinese, Dutch, French, German, Hebrew, Japanese, Portuguese, and Spanish). The content is written in a straightforward and non-technical manner, making it accessible and understandable. An accompanying English language blog will feature new content and expert articles that will be refreshed on a regular basis. The website also includes a subscription feature so those interested may sign up for email updates.

Chancellor Strine said, “By creating an ongoing forum for conversation among Delaware’s corporate bar and entrepreneurs, investment bankers and corporate lawyers around the globe, the State’s Corporate Law website will deepen Delaware’s growing status as the world’s leading domicile for the formation of sophisticated business entities.   Good long-term relationships are grounded in mutual understanding and respect, and this website is an illustration of the appreciation Delaware has for the global constituents of its corporate and business laws.”

The Delaware Court of Chancery Rules Committee participated in creation of content for the site as well, forming an “Article’s Subcommittee” that has crafted expert articles that will be featured on the blog.

Secretary Bullock said, “We have long recognized the need to communicate with the international community to leverage the State of Delaware’s key strengths: our advanced corporate law, business focused Court of Chancery, our expert legal community in Delaware, and our efficient Division of Corporations. This new site allows us to communicate this message across the world.”

Paul Olden, with the law firm NautaDutilh, who provided the Dutch and French translation of the website, said of the project, “In our opinion, it is important to be aware of the high quality of Delaware law and Judiciary. In our home jurisdictions Belgium, Luxembourg and the Netherlands, we closely monitor developments on corporate governance in the US, and Delaware in particular. The importance of these developments is partly due to the popularity of Delaware as a domicile for corporations from all over the US (and beyond). Delaware law and its body of precedent case law is therefore an example for the Benelux countries.”

Fast Facts

CorpLaw.Delaware.gov features:

• Straightforward content in 10 languages, written by experts:

1. English,
2. Arabic,
3. Chinese,
4. Dutch,
5. French,
6. German,
7. Hebrew,
8. Japanese,
9. Portuguese, and
10. Spanish

More languages will be added in the future.

The DECALS Blog, Decals.Delaware.Gov, which will post regular updates on Delaware Corporate Law, written by corporate attorneys and experts in the field, written in a non-technical manner (provided in English).

• An Email Subscription Service, for those interested in regular updates delivered to their inbox.

Sign Up for Email Updates:

1. Visit CorpLaw.Delaware.Gov
2. Text “CORPORATIONS” to 22828
3. Scan the below QR code with your phone 

Division of Corporations
Delaware is the chosen home of more than half of the publicly traded companies in the country including 64% of the Fortune 500 and tens of thousands of corporations and LLCs based all over the world.

Photos of the event can be viewed on Flickr

Video can be found on YouTube

Significant addition of socially-conscious corporations add to State’s leading role in corporate law

(Wilmington, DE)  Governor Jack Markell today joined legislators, entrepreneurs and investors to sign legislation (Senate Bill 47) enabling the formation of public benefit corporations in Delaware.  Public benefit corporations (“PBC’s”) are a new kind of socially conscious for-profit corporation intended to operate in a responsible and sustainable manner.  Their affairs are to be conducted for the benefit not only of stockholders, but also for public interest and those affected by the corporation’s activities. The creation of PBC’s in Delaware is a significant addition to the state’s long- standing leadership in the development of corporate law worldwide.

“We’ve all heard about corporations wanting to ‘do well’ while also ‘doing good.’  With this new law, Delaware corporations will now have the ability to build those dual purposes into their governing documents,” said Governor Jack Markell.  “ We have heard repeatedly that public benefit corporations can fill a market need.  But just as important, they will also fill a societal need.”

Delaware is the legal home of more than one million legal entities, including many of the nation’s largest businesses. The State’s recognition of this new type of corporation whose end objective is to create a positive impact on society and the environment is expected to have a significant effect on the development of this area of corporate law. The law requires directors of a Delaware public benefit corporation to balance the interests of stockholders with the best interests of those materially affected by the corporation’s conduct and the specific public benefits identified by the corporation.

“This law will provide benefit corporations with the stability, efficiency and predictability that are the hallmarks of Delaware corporate law,” said Secretary of State Jeffrey W. Bullock who oversees the state’s Division of Corporations.  “Our Courts, our corporate and legal services industry, and my staff look forward to providing the high-quality infrastructure and support that managers and investors have come to expect from Delaware.”

This new corporate structure helps businesses combat short-termism, attract talent and customers, and accelerate the growth of a big investment opportunity to meet the needs of people who want to both make money and make a difference.  The legislation, Senate Bill 47, passed the Delaware General Assembly without a vote in opposition.

“I’m proud that Delaware now has a corporate vehicle to offer business leaders and investors that want to create value that extends well beyond owners and managers to society and the public as a whole,” said Sen. David Sokola (D-Newark), who was the prime sponsor of the bill in the Senate.

“I’m happy to have co-sponsored this law which because of our State’s unique role in Corporate America will make benefit corporations a viable option for entrepreneurs and investors in Delaware and throughout the nation,” said Rep. Byron Short (D-Highland Woods) who chairs the House Economic Development Committee.

B Lab, a non-profit organization whose mission is to use the power of business to solve social and environmental problems, is the nation’s leading advocate for benefit corporation legislation. B Lab also certifies hundreds of companies that meet rigorous standards of social and environmental performance, accountability and transparency including more than 70 firms that are already incorporated in Delaware. According to Jay Coen Gilbert, co-founder of B Lab, “Delaware’s enactment of benefit corporation legislation helps business return to its proper role in society to create shared and durable prosperity. We’re deeply appreciative of Governor Markell’s leadership and the strong support of the Delaware General Assembly, the State Bar Association, the Court of Chancery, and the Secretary of State in creating a clear path to scale business as a force for good.”

Formation of a Public Benefit Corporation

A public benefit corporation (PBC) will be formed in the same manner as any other corporation formed under the Delaware General Corporation Law. However, in order to be a PBC, the corporation’s certificate of incorporation must identify one or more specific public benefits and must have a name that clearly identifies its status as a PBC. Public benefits for which corporations may be formed include, but are not limited to, those of an artistic, charitable, cultural, economic, educational, environmental, literary, medical, religious, scientific or technical nature.

At least once every two years, a public benefit corporation must send its stockholders a statement with respect to its promotion of the public benefit(s) identified in its charter, as well as its promotion of the best interests of those materially affected by the corporation’s conduct.

Norm Monhait, Chair of the Council of the Corporation Law Section of the Delaware State Bar Association, stated “We believe this law provides the best available vehicle for broad public investment in benefit corporations.  Members of the Delaware Bar stand ready to assist B Corp managers and investors who want to better understand this legislation and use it to reach their goals.”

Following the bill signing ceremony, Governor Markell joined dozens of CEO’s, investment and venture capital firms and legal experts at a program on benefit corporations hosted by the World Economic Forum in New York City.  The event offered the first opportunity for the State to promote the advantages Delaware has to offer benefit corporations.   Governor Markell was joined at World Economic Forum by Delaware’s Chancellor Leo Strine and Delaware corporate attorney Rick Alexander.

Corporations are eligible to form, convert or merge into a public benefit corporation in Delaware beginning August 1, 2013.

Photos from the event are available on flickr.